May Term, 1856.

ST. JOHN

V.

vice of said writ, paid an engineer, on section 156, 500 dollars, and to laborers (who had been in the employ of Harrington on other sections) 1,430 dollars, leaving of HARRINGTON. his money in the trustees' hands 1,963 dollars. It further appeared, that said attaching creditors had recovered, in the Vigo Circuit Court, judgments against Harrington for their respective demands. In the cross bill there is a charge of fraud against the complainants and the trustees; but that charge is unsustained by proof. The Court on final hearing decreed that the whole of the 1,963 dollars, with interest, &c., be paid to the complainants as follows: to Groverman and Bourne 1,400 dollars; to Bement & Co. 638 dollars; and to Beymer and Graff, 41 dollars; that the cross bill of the defendants, Rufus St. John et al., be dismissed; that the complainants and the trustees recover their costs against the complainants in the cross bill, and that the complainants in the original bill recover their costs against the board of trustees, &c.

That the complainants, by virtue of their orders, were entitled, in equity, to payment out of Harrington's funds in the hands of the trustees, is not contested; but it is contended that, as to the payments made by them after the service of the attachment, they must be held liable for the amount thereof to the plaintiffs. Suppose this position to be correct, it constitutes no ground of defense to the complainants' bill. The attaching creditors, having obtained judgments against Harrington, the law at once pointed out their, mode of procedure against the trustees. R. S. 1843, p. 767, s. 23. If they were regularly summoned as garnishees, the question whether the trustees had illegally disposed of Harrington's funds in their hands, after service of the writ, was one plainly triable at law, and not in equity.

GOOKINS, J.-Having been concerned as counsel in the cause, was absent.

The judgment is affirmed.

A. Kinney, for the plaintiffs.

S. B. Gookins and W. D. Griswold, for the defendants.

AT INDIANAPOLIS, NOVEMBER TERM, 1856, IN THE FORTY-
FIRST YEAR OF THE STATE.

ATKINSON V. JACKSON.

A father promised his infant son to convey to him certain land, in con-
sideration of his services until he should be twenty-one years of age.
The son worked for his father until he was twenty-two years of age;
at the end of which time, the father renewed his promise, transferred
the land on the tax-list, and gave the son possession. The son made
improvements, largely enhancing its value. The father suddenly died
intestate, without executing a conveyance. The son brought his peti-
tion for specific performance, against the other heirs. Held, that the
year's service after the son became of age, constituted a valuable con-
sideration; and that the entry and improvements, coupled with the
acts of the father, took the case out of the Statute of Frauds.
Where the contract is certain, fair in all its parts, founded on a valuable
consideration, does not interfere with the rights of creditors, and is
capable of being performed, the courts will generally decree specific
performance.

APPEAL from the Henry Circuit Court. STUART, J.-Atkinson filed his complaint, in the form of a petition to enforce the specific performance of a

Monday,
November 24.

Nov. Term, parol agreement for the conveyance of forty acres of 1856. land. Demurrer to the petition sustained. Atkinson ATKINSON excepted, and now presents his appeal.

V.

JACKSON.

The petition alleges that James Atkinson, father of the petitioner, died intestate, in June, 1853, seized in fee of certain lands therein described, and leaving the petitioner and the defendants his heirs, &c.; that in 1836, when the petitioner was between fourteen and fifteen years old, his father made a verbal contract with the plaintiff, that, if he should remain with and work for his father till he attained the age of twenty-one years, he, the father, would, in consideration thereof, convey to the son a certain tract of land described, containing 40 acres. It is further averred that the plaintiff served his father thenceforth until he was of age, and one year thereafter; that at the end of the service his father renewed the promise in relation to the forty acres, and had the land transferred to the plaintiff on the tax-list; that the plaintiff, in pursuance of the contract, and under the direction of his father, entered into possession, and has since made improvements thereon to the value of 400 dollars; that the value of the land at the time of the contract was about 100 dollars; that it is now worth 1,000 dollars; that his father died suddenly in June, 1853, without executing a conveyance. The plaintiff, therefore, prays a decree for a deed, and for other relief.

The defendants, Jackson and others, demurred. The only statutory cause of demurrer is that the petition does not state facts sufficient to entitle the plaintiff to the relief sought. In support of the demurrer, Adamson v. Lamb, 3 Blackf. 446, is relied upon. Up to the

period of full age of Adamson and Atkinson respectively, the two cases are very similar. But the year's service of Atkinson after he came of age, and the renewed promise and acts of the father, are strong distinguishing elements. That year's service constitutes a valuable consideration. The promise of the father after the maturity of the son, and at the end of the service, is thus well supported. In

1856. ATKINSON

V.

JACKSON.

addition, there are the acts of the father transferring Nov. Term, the land on the tax-list, and putting the son in possession. Still further, are the improvements on the faith of the contract. The entry, in pursuance of the agreement, and the improvements, coupled with the acts of the father, ought, it would seem, to take the case out of the Statute of Frauds. Such seems to be the tenor of the authorities. When, as in the case at bar, the party has been put in possession, and made improvements greatly enhancing the value of the land, it would be a fraud upon the vendee to permit the vendor to escape from a strict fulfilment of the contract. This state of facts, admitted by the demurrer, was sufficient to take the case out of the statute. 2 Story's Eq. Jurisp. 64.— Johnston v. Glancy, 4 Blackf. 94.—Ash v. Daggy, 6 Ind. R. 259.

Here, the contract is certain, is fair in all its parts, is for a valuable consideration, does not interfere with the rights of creditors, and is capable of being performed. In such cases, courts will generally decree a specific performance. Nor is such a decree wholly discretionary. The discretion, which it is said, the court may exercise in decreeing a specific performance, is a sound discretion, defined and governed by settled principles. Seymour v. Delaney, 6 Johns. Ch. 222.-St. John v. Benedict, id. 111. The facts alleged in the petition, admitted on demurrer, or proved at the hearing, are sufficient to entitle the party to the relief sought.

Any doubt that might arise as to a contract between the father and his infant son, is removed by the ratification of it after the son came to maturity. Particularly so, as the son worked for his father till he was 22 years old, and thus furnished, in addition to the putting in possession and improvements, a valuable consideration for the promise.

The case of Denbo v. Tipton, 2 Ind. R. 20, may seem inconsistent with that at bar. But that case is too meagerly reported to be relied upon as authority. Yet VOL. VIII.-3.

Nov. Term, in the brief statement of the facts, there is sufficient to

1856.

KYLE
V.

MALIN.

distinguish that case from this.

Per Curiam.-The judgment is reversed with costs. Cause remanded, &c.

W. Grose, for the appellant.

J. T. Elliott and J. H. Mellett, for the appellee.

KYLE v. MALIN.

Section 17, of the charter of the town of Vevay, provided that "whenever the owners of lots on any street shall be desirous of making any improvements, &c., two-thirds of the owners of real estate on such street, and representing two-thirds of the whole number of feet on each side of such street, shall petition," &c. By a subsequent act the section was so amended as "to authorize such improvements to be made upon the petition of a majority of the owners of real estate on the street," &c.; but the amending act is silent as to the number of feet, &c. Held, that the amendment went directly to the number of petitioners, and did not affect the provision touching the number of feet. Municipal corporations are to be held strictly within the limits prescribed by statute; but within these limits they are favored by the

courts.

Powers expressly granted, or necessarily implied, are not to be defeated or impaired by a strict construction; but the acts authorized by a charter must be done in the manner prescribed by that instrument; and, especially where such acts affect private property, the powers granted must be strictly pursued.

APPEAL from the Switzerland Court of Common

Pleas.

STUART, J.-Complaint by Malin against Kyle, treasurer and collector of the town of Vevay, praying an injunction restraining him from the collection of an assessment for the grading, &c., of Washington street. On the hearing, the injunction was made perpetual. Kyle appeals.

It appears that in April, 1853, some of the property holders on Washington street, Vevay, petitioned the trus